The foundational tenets of our legal system include justice and fairness. It is assumed is that we can access and assert our rights in law. Increasingly what we see in the courts is a rising number of people who represent themselves with measurably worse outcomes than if they had retained a lawyer, and many more who are just not seeking justice at all because of legal costs. For many years, the focus was improving access through legal aid and pro bono legal services. However, today that is only one small part of the answer to a very big problem. What more can be done to improve the situation?

A less radical proposal is to use technology to drive down the costs of lawyers, with the hope that those savings will trickle down to the public. Certainly there is a lot of discussion based around court technologies, there was an entire two-day Canadian Forum on Court Technology which took place in Montreal October 24-25, and there has been progress with work on identifying best practices for remote court appearances, including this report from Canada and this one from Australia. But even technological solutions as simple as electronic filing progress slowly through the court system. While some courts in Canada don’t even accept faxes, Singapore just moved to a comprehensive eLitigation model, after 13 years of success with electronic filing.

Finally, there is a real concern that technology is actually decreasing access to justice. The fear is that digital access to justice tools will be seen as a cost effective ‘upgrade’ to traditional access to justice initiatives, and investment that in the new technology could come at too high a price for people without the skills or equipment needed to navigate online tools. From the perspective of someone on the other side of the ‘digital divide’, every dollar spent on digital access to justice projects might very well be a dollar taken away from other projects that could serve them better. Even courts ‘getting with the times’ and adopting new technologies pose a threat to these constituents. While the need to take time off work to physically file documents with the court was a barrier to justice before, moving to an online model threatens to create entirely new obstacles that my have to be dealt with.

While 66.7 per cent of households over the age of 65 in the top half of income use the Internet, that number drops to only 28.5 per cent for the poorest quartile of households.

Patrick Michael writes about the increasing role that technology plays in persuasive presentations to the court. Will self-represented litigants be able to continue to compete in court as persuasion goes more high tech?

JCUP installed a prototype system in Division 8 of the Jefferson Circuit Court. A recent murder trial demonstrated the flexibility of the pilot system. The prosecution used a document camera to display a diagram of the crime scene on one screen. Photographs of the physical evidence identified on the diagram were shown on the second screen from a laptop. The defense utilized the touch-screen technology with a witness illustrating the distances between pieces of evidence on the crime scene photographs.

As part of discussions on revolutionizing Canada’s legal system, lawyers and judges have talked about the need to look beyond pro bono law to respond to urgent needs related to access to justice. During a recent speech at the Law Society of Upper Canada, Supreme Court Justice Thomas Cromwell urged lawyers to be innovative in addressing the issue.

Finally, if you are looking for an article to fire up your passion for the need for real and tangible action on access to justice, I urge you to read this article by Mitch Kowalski on some of the shortcomings of the most recent CBA report on the subject.

Much of the CBA Report calls for more resources to be put into legal aid, into new court systems, into new centres of excellence and on and on and on.

Interesting ideas, all of them. But what the report fails to answer is the fundamental question: who is going to pay for this? Every government in this country will tell you, “there isn’t any money,” so I’m troubled that the report assumes unlimited funding is available. I’m equally troubled that the writers have ignored the economic realities in which we live.

If you’ve never participated in a Twitter Chat before, let me explain: it’s a mix of a networking event, and a retro ‘chat room’. Questions are asked by a moderator, and everyone is free to respond and engage with each others’ ideas. It’s a great way to get new perspective on issues, and connect with new and interesting people. Read more abouthow twitter chats work.

Comments

This is the wrong approach to the “access to justice problem of unaffordable legal services,” because:

(1) it accepts the view that solutions based upon self-help, pro bono, and “greater use of technology,” can be good enough replacements for lawyers, for people who are not rich, which amounts to saying that “two-tier justice” is good enough for middle and low-income people (being the majority of the population, and tax payers financing the justice system), even though such is therefore probably unconstitutional;

(2) such decades-long, weak, inadequate recommendations by the legal profession are good grounds for arguing that, “legal services at reasonable cost” is a needed constitutional right;

(3) it accepts the view that the present high cost of legal services cannot be changed, therefore the necessary solution has to avoid the use of lawyers; (how do those lawyers survive without those lost clients?);

(4) it attempts to preserve the existing method of delivering legal services, which in fact, is the cause of the problem, not the failure to employ the right improvement to the existing method.

Lawyers and law societies don’t understand the true nature of the problem or its cause, therefore it has been growing worse for decades. It is a problem for which lawyers do not have the necessary expertise, nor have they had the necessary training or experience. See my Slaw columns of Oct. 24th & August 9th , 2013.

The solution requires that the present method of delivering legal services be replaced by a support-services method. That is what the medical profession and all of large-scale manufacturing have done. The Federation of Law Societies of Canada can use the same solution by enabling CanLII to be the kind of comprehensive support service that LAO LAW is for Ontario lawyers for their legal aid cases.

LAO LAW has a 34-year history of successful innovation in being the exact kind of support service that substantially lowers the cost of delivering legal services. The corroboration lies in fact of LAO LAW’s 34 years of success, know-how, popularity, and in saving Legal Aid Ontario millions of dollars. Who or what can match that record?

I know what LAO LAW’s technology can do because I was its first Director of Research. All other people who have made recommendations to solve the problem have not had the same opportunity, i.e., to put their recommendations into operation, then go through the long and very arduous trial-and-error process leading to successful innovation. I did that for nine years at LAO LAW-a period of sufficient length to adequately compensate for my lack of formal training in the field of systems development needed to solve the problem.

Without that opportunity for trial-and-error experience, all recommendations are substantially, if not totally, mere speculation. There is nothing as capable as LAO LAW at doing what it does in any other law office or institution in the legal profession in Canada. Use it, or lose the power of self-regulation of the legal profession to government intervention. The problem is that serious and intolerably and unconscionably long-standing.

For the majority of Canada’s population, without lawyers, the constitution is a paper tiger, and Canada is not a true constitutional democracy. A democracy does not have to tolerate such poor performance from its law societies.

Ken,
It is unfortunate you were unable to participate in yesterday’s twitter chat. This is exactly some of the dialogue I was hoping for. We did have wonderful participants yesterday, and I encourage you to take a look at the #CBAFuturesChat feed.
These were the questions posed during the twitter chat.

Q1: Is #LegalTech on it’s own going to drive down costs to facilitate Access to Justice? What else needs to happen?
Q1: Is costs the only thing #LegalTech can help with?
Q2: How can we make sure #LegalTech doesn’t worsen the ‘digital divide’ and end up hurting #A2J?
Q3: Is the focus on #LegalTech in #A2J short sited? What can and can’t #legaltech do in #a2j?

I do believe the solution to A2J is not just technology alone. Although, many papers has cited it as a way to improve the efficiency and efficacy of the courts. It was a lively discussion last night, and it appears to be a topic many people are passionate about.
All the best,
Monica